A district court in Tennessee has permitted some claims in a sexual harassment suit to move forward after one male employee accused a male coworker of inappropriate behavior.

In Smith v. Rock-TENN Services, Inc., Jeffrey Smith worked for Rock-Tenn Services, Inc., a box and packaging materials manufacturer from August 2010 until the end of September 2011. Around the beginning of 2011, Smith claimed that a male coworker, James Leonard, slapped him on the rear during a shift. In accordance with the company’s sexual harassment policy, Smith first informed Leonard that he did not want Leonard touching him. A few days later, Leonard allegedly grabbed Smith “in the crack of his butt,” hard enough that his rear was irritated for two days. This time, Smith grabbed Leonard by the arm and threatened him, but he did not report either incident to a higher authority. However, Leonard was eventually placed on a performance improvement plan for “horseplay sexual harassment” after another employee reported him. Leonard was informed that any further sexual harassment allegations would be grounds for termination.

Nonetheless, in June 2011, Smith claimed that Leonard grabbed him by the hips while he was bent over a machine and thrust his genitals against him. Smith then grabbed Leonard by the throat and held him for roughly 30 seconds before releasing him. Smith then reported the incident to his supervisor, as well as to two other supervisors. One supervisor he informed of all three incidents. After an investigation was done, the supervisors concluded that Leonard should be terminated. However, the general manager, who was unaware of all three of Leonard’s actions toward Smith, disagreed and thought that the evidence was only enough to merit a three-day suspension as a final warning.

Later that month, Smith took medical leave in order to seek counseling over the experience. A physician diagnosed Smith as having post-traumatic stress disorder and certified him to remain on medical leave until October 2011. Smith did not intend to return to work as long as Leonard still worked the same shifts. He learned that management had taken down his employee picture from the wall and assumed he had been fired. Management later claimed that they thought Leonard would return to work until he filed for unemployment insurance in September 2011.

Smith brought claims of sexual harassment, discrimination, retaliation, and constructive discharge under the Tennessee Human Rights Act (THRA) and the Tennessee Public Protection Act (TPPA), as well as sexual discrimination and harassment under Title VII of the Civil Rights Act of 1964. Smith’s former employer filed a motion for summary judgment in order to have the case dismissed.

The court found that with regard to the Title VII claim, sexual discrimination, Smith had done a sufficient job raising a genuine issue of fact as to whether Leonard treated male employees differently from female employees. There was no evidence that Leonard touched female employees in the same manner as he touched male employees. Likewise, Smith had raised a genuine issue of fact as to whether Leonard’s persistent, unwanted touching created a hostile work environment. Smith also did a sufficient job raising a genuine issue of fact as to whether his employer had acted “indifferent” to his experiences.

However, the court sided with Smith’s former employer in finding that there was not enough evidence to show that he had received a constructive discharge, since there was no evidence that the employer actively created an objectively intolerable environment. The court also noted that, since Smith failed to establish constructive discharge, he also failed to show that it was retaliatory.

Therefore, while the court dismissed Smith’s discharge claims, it permitted the discrimination and sexual harassment claims to move forward.

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